October 6, 2009

Delta smelt update: oral argument recap

By Delta smelt update: oral argument recap

Author: Brandon Middleton

Last week in Fresno, a federal district court heard oral arguments concerning issues related to the U.S. Fish and Wildlife Service's delta smelt biological opinion. One important matter heard by the court was Pacific Legal Foundation's constitutional cause of action — given that the delta smelt is found only in California and has no commercial value, we don't believe that the federal government may use its interstate commerce power to impose any sort of delta smelt regulations.

Unfortunately, the court tentatively declined to adopt our argument.  We will have to wait for the court's final decision before determining whether an appeal to the Ninth Circuit is appropriate.

The court did offer some good news, however. It declared that the Fish and Wildlife Service failed to comply with the National Environmental Policy Act when it issued the harmful delta smelt biological opinion. Although this ruling is also tentative, it demonstrated that the court is aware of the "catastrophic effects" of the biological opinion.

We'll again have to wait for further determinations to see how exactly this ruling will help the Central Valley. But there's no question that Friday's hearing, as the Fresno Bee put it, provided "an encouraging legal win for farmers."

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